Congressional Republicans Attempt to Overturn OSHA Vaccine Rule
“These resolutions each have a large number of cosponsors, suggesting that they are being used for signaling purposes despite very low odds of enactment,” said one observer.
Republicans in both chambers are attempting to overturn the Biden administration's coronavirus vaccine rule for private business, but they face tough odds.
All 50 Republican senators and at least 170 House Republicans signed onto Congressional Review Act resolutions that were formally introduced on Wednesday, taking aim at the Occupational Safety and Health Administration’s emergency temporary standard that requires vaccinations or frequent testing for private businesses with 100 or more employees. This impacts U.S. Postal Service workers as well. The 1996 Congressional Review Act gives Congress the ability to overturn agency rules during a certain period of time following their issuance. Both chambers must pass a resolution for the president to sign. While often used following a presidential transition, it can be used in other times as well.
“Our Congressional Review Act resolution would nullify this overreach by the White House. More importantly it puts every member of Congress on record: You’re either with this type of authoritarian rule or you’re against it,” said Rep. Fred Keller, R-Pa., ranking member of the House Education and Labor Committee’s Workforce Protections panel, during a press conference on Thursday. The various legal challenges and the administration having to hold off on implementing the rule mean “we’re on the right track,” Keller said. Other House lawmakers speaking at the conference raised concerns that the rule represents a breach of medical freedom, ignores natural immunity to COVID-19 and fails to consider labor shortages that could result. Several noted they are not necessarily “anti-vaccine.”
The OSHA rule and the possible fines for employers' violations place “unrealistic compliance burdens on employers—especially during a time where business and supply chains are already under duress,” said a press release from the office of Sen. Mike Braun, R-Ind., ranking member of the Senate Health, Education, Labor and Pensions Committee, who is heading the charge in the Senate.
Braun encouraged his colleagues to vote for the resolution “when it comes to the floor for a filibuster-proof, simple-majority vote as soon as early December.”
The debate over vaccine rules and mandates has become highly politicized, which has brought even some Sesame Street characters into the fray. However, regulatory experts and other observers have cast doubt that this initiative to use the Congressional Review Act will actually succeed.
“To be enacted, these resolutions would have to be approved by majorities in the House and Senate and then signed into law by President Biden,” Bridget Dooling, research professor at The George Washington University’s Regulatory Studies Center, told Government Executive.
“Even if they passed in the House and Senate, which is unlikely, it is extremely unlikely that the president would sign the disapproval into law. After all, President Biden has been very supportive of OSHA's use of this regulatory authority as a means to encourage vaccination,” she continued. “These resolutions each have a large number of cosponsors, suggesting that they are being used for signaling purposes despite very low odds of enactment.”
Similarly, Stuart Shapiro, associate dean of faculty at the Bloustein School of Planning and Public Policy at Rutgers University, said this probably will not go through. “I guess there is a small chance a resolution would pass the Senate, which would be newsworthy but [it would be] very hard ([if not] impossible) to see it getting through the House and definitely impossible to see Biden signing it,” he told Government Executive.
This attempt is “the Republicans falling back in love with the [Congressional Review Act’s] anti-regulatory foundations,” said Matt Kent, regulatory policy associate at the consumer advocacy nonprofit Public Citizen. “Democrats struggled to use the bill to undo some of Trump’s deregulation. Republicans almost uniformly fall in line when a public health regulation is in the crosshairs. Ultimately though, the current political arrangement makes the resolutions political theater that may help fundraising but won’t influence the vaccine rule.”
Additionally, in an overview about the 1996 law, the Congressional Research Service says that “a president can generally be expected to veto a joint resolution of disapproval attempting to overturn a rule issued by the president’s own administration.” So, if the president vetoes the measure, Congress could try to override it.
“A two-thirds majority of both houses of Congress is required to override a president’s veto,” said the service. “This creates a de facto supermajority requirement for a [Congressional Review Act] joint resolution to be enacted in most cases.”
Government Executive reached out to Keller and Braun’s offices about the fact that some argue this attempt will not be successful.
“More than 230 Republicans across both chambers of Congress are standing with the 80 million American workers who would be impacted by this vaccine mandate in advancing our [resolution],” Keller said in a statement. “Just this week, OSHA was forced to back down from implementing its rule due to growing pressure. This means we are on the right track and must continue to push to eliminate this rule for good. We urge our Democratic colleagues to stand with us in affirming that American families are capable of making informed medical decisions for themselves—they don’t need the president to do it for them.”
Braun’s office did not respond for comment.
On Tuesday, the 6th Circuit Court of Appeals, based out of Cincinnati, won the lottery to hear the legal challenges to the Occupational Safety and Health Administration’s private businesses vaccine rule following over two dozen lawsuits. The majority of judges on the circuit were appointed by Republican presidents. It will have to decide whether or not to lift the temporary stay instituted by the 5th Circuit Court of Appeals, based in New Orleans.
The agency’s website currently says, “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the [emergency temporary standard] pending future developments in the litigation.”
On Wednesday, the Government Accountability Office issued a decision on the vaccine rule, which Kent said is a “procedural requirement” for GAO to issue a report on whether or not an agency met its obligations under the Congressional Review Act upon issuing most major rules.